Robert Ito Farm, Inc. v. County of Maui

Filing 134

ORDER EXTENDING INJUNCTION ENTERED INTO BY STIPULATION re 26 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/19/2015. "Pursuant to this order, the County is enjoined from enacting, implementing, or enforcing the O rdinance until the court has ruled on the merits of this dispute." 39 MOTION to Dismiss or for Judgment on the Pleadings, or in the Alternative, to Stay Proceeding continued to 6/15/2015 09:00 AM before CHIEF JUDGE SUSAN O KI MOLLWAY; 70 MOTION for Summary Judgment on Claims 1, 2 and 4 continued to 6/15/2015 09:00 AM before CHIEF JUDGE SUSAN OKI MOLLWAY. (emt, )CERTIFICATE OF SERVICEParticipants registere d to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROBERT ITO FARM, INC., et
al.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF MAUI,
)
)
Defendant,
)
)
and
)
)
ALIKA ATAY, et al.,
)
)
Intervenor)
Defendants
)
_____________________________ )

CIVIL NO. 14-00511 SOM/BMK
ORDER EXTENDING INJUNCTION
ENTERED INTO BY STIPULATION

ORDER EXTENDING INJUNCTION ENTERED INTO BY STIPULATION
I.

INTRODUCTION.
Two bills were introduced in the Legislature of the

State of Hawaii seeking to prohibit county ordinances abridging
the rights of farmers and ranchers to use agricultural practices
not prohibited by federal or state law.

In light of the

possibility that legislation may affect this case, even if
ultimately through legislative vehicles other than those two
bills, this court continues the hearing on the pending motions in
this case until the legislative session has concluded, and
extends the injunction staying the enactment, implementation, and
enforcement of the ordinance at the heart of this case.

That

injunction was stipulated to by Plaintiffs Robert Ito Farm, Inc.,

Hawaii Farm Bureau Federation, Maui County, Molokai Chamber of
Commerce, Monsanto Company, Agrigenetics Inc., Concerned Citizens
of Molokai and Maui, Friendly Isle Auto Parts & Supplies, Inc.,
New Horizon Enterprises, Inc., and Hikiola Cooperative
(collectively, “Plaintiffs”), and by the County of Maui (the
“County”).
The hearing on the motions currently pending in this
case is continued until 9 a.m. on Monday, June 15, 2015.

The

injunction staying the enactment, implementation, and enforcement
of the ordinance in issue remains in effect until the court rules
on the merits of this dispute.
II.

FACTUAL BACKGROUND.
On November 4, 2014, “A Bill Placing a Moratorium on

the Cultivation of Genetically Engineered Organisms” (the
“Ordinance”) was passed by ballot initiative in the County of
Maui.

See ECF No. 26, PageID # 440.
The Ordinance renders it “unlawful for any person or

entity to knowingly propagate, cultivate, raise, grow or test
Genetically Engineered Organisms within the County of Maui” until
such ban is amended or repealed by the Maui County Council.
No. 71-4, PageID # 1412; ECF No. 102-21, PageID # 2520.

The

Ordinance provides an exception to the ban on genetically
engineered (“GE”) organisms if an organism is in “mid-growth
cycle” when the Ordinance is enacted.

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See id.

ECF

Any person or entity that violates the Ordinance is
subject to civil penalties of $10,000 for the first violation,
$25,000 for the second violation, and $50,000 for the third or
any subsequent violation.

See ECF No. 71-4, PageID # 1413; ECF

No. 102-21, PageID # 2521.

Each day that a person or entity is

in violation of the Ordinance is considered a separate violation.
See id.
In addition to civil penalties, “any person or entity,
whether as principal, agent, employee, or otherwise, violating or
causing or permitting the violation of any of the provisions of
[the Ordinance], shall be guilty of a misdemeanor, and upon
conviction thereof shall be punished by a fine of not more than
two-thousand dollars ($2,000.00), or imprisoned not more than one
(1) year, or both, for each offense.”

Id.

Plaintiffs filed their Complaint against the County on
November 13, 2014, asserting that the Ordinance is preempted
under federal law and state law, violates the Commerce Clause of
the United States Constitution, and violates the Maui County
Charter and state law.
On November 17, 2014, Plaintiffs and the County
stipulated, and the court ordered, that the Ordinance may not be
“published, certified as an Ordinance, enacted, effected,
implemented, executed, applied, enforced, or otherwise acted upon
until March 31, 2015, or until further order of this Court, in

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order to allow for adequate time for the parties to brief and
argue and for the Court to rule on the legality of the Ordinance
as a matter of law.”

ECF No. 26, PageID # 441.

On December 15, 2014, Alika Atay, Lorrin Pang, Mark
Sheehan, Bonnie Marsh, Lei'ohu Ryder, and SHAKA Movement
(“Intervenors”) were permitted to intervene in this action as
Defendants.

See ECF No. 63.

Two bills were introduced in the Legislature of the
State of Hawaii that, if enacted, would prohibit county
ordinances abridging the rights of farmers and ranchers to use
agricultural practices not prohibited by federal law or state
law.

See H.B. No. 849; S.B. No. 986.

These bills were

introduced after the summary judgment motion now before this
court was filed, so the bills are not addressed in the summary
judgment briefs.

Although the court (and, the court assumes, the

parties) became aware of the bills, neither the court nor the
parties immediately raised the subject of the bills, as there
were no substantive proceedings scheduled in the case until March
10, 2015, and as the fate of the bills was uncertain.
Shortly before the March 10 hearing, the court
suggested that the March 10 hearing time be used to address
whether to defer consideration of the motions before the court in
light of the bills.

As it turned out, neither H.B. No. 849 nor

S.B. No. 986 met the Legislature’s decking or cross-over

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deadline.

Neither bill appears at the moment likely to be

enacted in 2015.

All parties nevertheless acknowledged on the

record at the March 10 hearing in this lawsuit that legislative
procedures might still allow for language from the bills to
become law in 2015.

That is, while the bills themselves might

not move forward, the content of the bills could conceivably find
its way into other bills.
Given the chance, however remote, that legislation
might affect the present dispute, a discussion was held on March
10 regarding whether the Ordinance should be stayed until the
Legislature adjourns in May 2015.

Plaintiffs and the County

expressed the view that the terms of the injunction they had
stipulated to already stay the effect of the Ordinance until the
date the court rules on the merits of this dispute, whenever that
might be.

See ECF No. 24, PageID # 429 (“Defendant County of

Maui shall be and is hereby enjoined from . . . enacting, . . .
enforcing, or otherwise acting upon the Ordinance, and the
Ordinance shall not be . . . enacted, . . . enforced, or
otherwise acted upon until March 31, 2015, or until further order
of this Court, in order to allow for adequate time for the
parties to brief and argue and for the Court to rule on the
legality of the Ordinance as a matter of law.” (emphasis added)).
Intervenors opposed any injunction beyond March 31,
2015, noting that they had not been parties to the original

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stipulation.

The court permitted Intevenors to file a brief

discussing the balance of hardships relevant to an extension of
the injunction beyond March 31, 2015.1
III.

See ECF No. 130.

STANDARD.
To obtain a preliminary injunction, a party must

“establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.”
Def. Council, Inc., 555 U.S. 7, 20 (2008).

1

Winter v. Natural Res.
A preliminary

In issuing the present order, the court is relying on the
factual circumstances included in the record. As noted above,
there is no dispute among the participants in this case that a
possibility, while slight, exists that legislation affecting this
case might pass in 2015, even if such legislation ends up being
contained in a vehicle other than H.B. No. 849 or S.B. No. 986.
The court reiterates this in light of a rumor that came to the
court’s attention only because one of the district judge’s
relatives happened to make a reference to a letter the relative
had heard might have been written by a state legislator to the
judge in connection with this case. The judge did not engage in
discussion on the subject with the relative. The court would not
normally comment on rumors, but does so here only because of the
allegedly official nature of the communication referred to. The
judge has not received any such letter. Indeed, with respect to
factual matters, except for materials that are readily available
to the parties and verifiable as authentic, courts typically
confine themselves to relying on materials that are submitted by
the parties and that are included in the record. No such letter
was submitted by a party, and none is in the record. Moreover,
any such letter would be irrelevant to the present ruling unless
it provided some reason for this court to disregard the unanimous
acknowledgment by the participants in this case, apparently based
on observations or experiences in other instances, that, even if
particular bills are not advancing in a legislative session, a
possibility remains for the passage in the session of some
legislation that includes provisions from those bills.
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injunction may also issue when there are serious questions going
to the merits and a balance of hardships that tips sharply
towards the plaintiff “so long as the plaintiff also shows that
there is a likelihood of irreparable injury and that the
injunction is in the public interest.”

Alliance for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
IV.

ANALYSIS.
A.

Intervenors’ Request For an Evidentiary Hearing is
Denied.

Intervenors contend that they are entitled to an
evidentiary hearing before this court makes any ruling relating
to the injunction entered into by stipulation.
PageID # 2910.

See ECF No. 131,

Intervenors assert that an evidentiary hearing is

necessary for Plaintiffs to demonstrate irreparable harm and for
Intervenors to oppose issuance of an injunction.

See id. at

PageID #s 2910-11.
Intervenors’ request for an evidentiary hearing is
denied.

Contrary to their contention, Intervenors have not been

deprived of an opportunity to oppose issuance of an extended
injunction.

Before the hearing on March 10, 2015, Intervenors

had notice that the court was considering extending the
injunction, see ECF No. 128, and Intervenors argued against an
extension at that hearing.

They then submitted a brief on the

balance of hardships issue. Intervenors contend that the notice
requirement in Rule 65(a) of the Federal Rules of Civil Procedure
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“implies a hearing in which a defendant is given a fair
opportunity to oppose the application and to prepare for such
opposition.”

Id. at PageID # 2910 (quoting Eisen v. Golden, 2006

Bankr. LEXIS 4790, *16-18 (B.A.P. 9th Cir. Dec. 28, 2006)).
Intervenors do not demonstrate noncompliance with Rule 65(a).
To the extent Intervenors are contending that an
evidentiary hearing is required to resolve disputed facts, the
court is unpersuaded.

Intervenors identify no material disputed

facts likely to be resolved in the requested evidentiary hearing,
and the court perceives no need for additional evidence to decide
whether the injunction should be extended.
The court also notes that the evidentiary hearing
Intervenors request would likely require discovery and findings
of fact that, even if expedited, would likely occupy about the
same amount of time as the extension that Intervenors oppose.
B.

An Extended Injunction is Appropriate.

The terms of the stipulation between Plaintiffs and the
County allow the injunction currently in place to remain in
effect beyond March 31, 2015, without further order of this
court.

Even if this court declines to rely solely on the

stipulation to extend the injunction in the face of opposition by
Intervenors, who were not parties to the stipulation, this court
concludes that an extension is warranted.

Support for the

extension is found in Plaintiffs’ motion for temporary

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restraining order and preliminary injunction, filed prior to the
stipulation.

As even Intervenors agree, there are serious

questions going to the merits of this case.
PageID # 2903.

See ECF No. 131,

Plaintiffs’ extensive briefing on their motion

for a temporary restraining order and preliminary injunction
identifies serious preemption issues of the kind addressed in
Syngenta Seeds, Inc. v. County of Kauai, Civ. No. 14-00014 BMK,
2014 WL 4216022 (D. Haw. Aug. 25, 2014), and Hawaii Floriculture
& Nursery Association v. County of Hawaii, 2014 WL 6685817 (D.
Haw. Nov. 26, 2014).

In those cases, orders were filed

precluding implementation of ordinances in other counties in
Hawaii regulating genetically engineered organisms.

The

preemption rulings in those two decisions demonstrate the
seriousness of the questions on the merits of this dispute.
This court also concludes that Plaintiffs are likely to
suffer irreparable harm in the absence of an injunction staying
enforcement of the Ordinance until the court rules on the merits
of the dispute raised by this case.

If the Ordinance takes

effect, Plaintiffs Monsanto Company (“Monsanto”) and Agrigenetics
Inc. (“Agrigenetics”), will be barred from any new planting of GE
crops, the primary focus of their operations.
PageID # 129.

See ECF No. 5-1,

Although Intervenors characterize the harm to

Plaintiffs resulting from enforcement of the Ordinance as purely
monetary, the potential harm extends beyond pocketbook injuries.

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To the extent having to stop planting GE crops injures the
ability of Monsanto and Agrigenetics to compete in the industry
and causes them to lose customers, those are injuries that courts
have recognized as intangible harms incapable of being redressed
monetarily.

See Pac. Radiation Oncology, LLC v. Queen’s Med.

Ctr., 861 F. Supp. 2d 1170, 1188 (D. Haw. 2012); Design
Furnishings, Inc. v. Zen Path LLC, No. CIV. 2:10-02765 WBS GGH,
2010 WL 4321568, at *4 (E.D. Cal. Oct. 21, 2010).
Collateral effects on other businesses reliant on
Monsanto’s and Agrigenetics’ GE operations, including Plaintiffs
Friendly Isle Auto Parts & Supplies, Inc., and New Horizon
Enterprises, Inc., will also likely result from implementation of
the Ordinance.

See ECF No. 1, PageID #s 9-10.

Aside from

monetary loss, those businesses may, like Monsanto and
Agrigenetics, lose prospective customers and the ability to
compete in their industries as a result of the Ordinance’s
enforcement.
For the same reasons that the court concludes that
Plaintiffs will suffer irreparable harm, the court sees the
balance of hardships tipping sharply towards Plaintiffs.
Although this court concludes that the harms cited by
Plaintiffs alone tip the balance of hardships sharply in their
favor, this court also considers the harm that may result to the
County in the absence of an injunction, as the County and

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Plaintiffs are aligned in stipulating to the extended injunction
that Intervenors oppose.

Absent an injunction, the County must

implement the infrastructure necessary to enforce the Ordinance.
If the Legislature prohibits the County from banning GE
organisms, or if the court grants Plaintiffs’ pending motion for
summary judgment, such efforts by the County may be for naught.
A short stay of the Ordinance could avoid a potential waste of
taxpayer resources.
In addition to the potential harms outlined above,
implementation of the Ordinance could result in the loss of jobs
for individuals in jobs relating to GE organisms.
1, PageID # 129; see also ECF No. 1, PageID #s 6-8.

See ECF No. 5The effects

of job loss will likely be particularly severe on the island of
Molokai, where job prospects are limited and the unemployment
rate is high.

See ECF No. 5-1, PageID # 130.

cannot be confined to purely monetary effects.

Unemployment
The loss of a job

affects the availability of health insurance and of college and
other opportunities for the laid-off worker’s family members.
These personal losses could have long-term effects on the County
as a whole.
Intervenors contend that the balance of hardships tips
in their favor because the issuance of an injunction will cause
irreparable harm to the environment, public health and safety,
Native Hawaiian interests, and the integrity of the political

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process.

ECF No. 131, PageID # 2905.
But whatever harm the proposed extension of the

injunction might cause to the environment and to public health
and safety would be indisputably brief.

The extended injunction

will stay the Ordinance only until shortly after the 2015
legislative session ends, a new hearing is held, and this court
rules on the merits of this dispute.

This will be a matter of a

few months.
Any environmental or public health and safety harm
resulting from maintaining the status quo for a few more months
must be viewed in the context of the provision in the Ordinance
saying that the ban on GE organisms does not apply to organisms
in “mid-growth cycle” at the time the Ordinance is enacted.
Section 11-7 of Article 11 of the Maui County Charter provides
that a proposed ordinance approved by a majority vote of
qualified electors “shall be considered enacted upon
certification of the election results.”
yet been certified.

The Ordinance has not

See ECF No. 101, PageID # 2263.

Even if

“enactment” occurred on March 31, 2015, GE crops in “mid-growth
cycle” at that time would be unaffected by the Ordinance, and
their cultivation could continue.

Intervenors focus much of

their attention on potential harms from pesticide use should the
injunction be extended a few months, but Intervenors do not even
suggest that pesticide use would significantly abate absent an

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injunction during those few months given the exemption for “midgrowth cycle” organisms.
Intervenors’ arguments regarding pesticides also appear
inconsistent.

In their opposition to Plaintiffs’ motion for

summary judgment, Intervenors say that the Ordinance “does not
seek to regulate pesticide users or distribut[o]rs.”
101, PageID # 2283.

ECF No.

Here, however, Intervenors focus much of

their argument against extension of the injunction on harms
flowing from pesticide use.

See, e.g., ECF No. 131, PageID #s

2906, 2907-08.
With respect to Intervenors’ contentions regarding
irreparable harm to Native Hawaiians, Invervenors’ papers do not
clearly describe the alleged harms at issue.

Intervenors state

that the Native Hawaiian practices of “protecting the land,
preserving native species, and utilizing native plants and
animals in the environment” are “threatened by continued GMO
operations,” but offer no explanation of how that is the case.
Intervenors’ papers do not describe precisely what damage will
result to which Native Hawaiian practices or to which species
from an injunction staying enforcement of the Ordinance over the
next few months.

The declaration Intervenors refer to in their

discussion of harm to Native Hawaiians appears to concern only
the alleged pesticide issue.
Intervenors also contend that an extension of the

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injunction staying enforcement of the Ordinance will harm the
integrity of the political process.
2909-10.

See ECF No. 131, PageID #s

Intervenors say that “[t]he County will greatly

undermine the will of the people if it is not compelled to
certify the election results approving a ballot measure and
implement the law that the majority of Maui voters approved into
law.”

ECF No. 131, PageID # 2910.
A short stay of the Ordinance will not undermine the

integrity of the political process.

The Ordinance is the subject

of litigation that may be affected by state legislation that is
no less part of the political process than a County initiative.
A short delay in enforcement of the Ordinance in light of the
reality of the legislative process and judicial review does no
harm to the integrity of the political process at the County
level.
The harms outlined by Intervenors do not tip the
balance of hardships in their favor.
Finally, this court examines whether extending the
injunction is in the public interest.

An injunction staying the

Ordinance for the few months it takes to determine whether the
Legislature will act, and to allow this court to rule on the
merits of this dispute, is in the public interest.

As previously

noted, a delay of this litigation makes practical sense given the
potential effect of legislation on this case.

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Failure to extend

the injunction staying the Ordinance could result in a
considerable waste of public resources if the County is forced to
build the infrastructure necessary to enforce the Ordinance, only
to find that other circumstances render those efforts
unnecessary.
The court has determined that: (1) there are serious
questions going to the merits; (2) there is a likelihood of
irreparable injury to Plaintiffs; (3) the balance of hardships
tips sharply towards Plaintiffs and the County; and (4) an
injunction is in the public interest.

On the basis of those

determinations, the court extends the injunction barring
enactment, implementation, or enforcement of the Ordinance until
this court has ruled on the merits of this dispute.

The hearing

on the motions in this case previously scheduled for March 10,
2015 (and then for March 31, 2015), is continued until 9 a.m. on
Monday, June 15, 2015, after the end of the legislative session
in May.

The court expects to issue a ruling on those motions no

later than the end of June. (The hearing on the matters in Atay
v. County of Maui, Civ. No. 14-00582, remain on the calendar for
March 31, 2015.)
V.

CONCLUSION.
Pursuant to this order, the County is enjoined from

enacting, implementing, or enforcing the Ordinance until the
court has ruled on the merits of this dispute.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 19, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District

Robert Ito Farm, Inc., et al. v. County of Maui; Civil No. 14-00511 SOM/BMK;
ORDER EXTENDING INJUNCTION ENTERED INTO BY STIPULATION

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